The Implied Antitrust Immunity

Barak Orbach

University of Arizona

June 8, 2014

Arizona Legal Studies Discussion Paper No. 14-16

In 1963, Richard Posner, then Justice William Brennan’s motivated clerk, drafted for the Supreme Court the iconic United States v. Philadelphia National Bank (“PNB”) decision. Addressing a set of issues in antitrust and regulation, Posner introduced several important doctrinal innovations and clarifications. Among others, PNB emphasized the primacy of competition over regulation and framed the implied antitrust immunity as a clear antitrust presumption: “Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored.”

The logic of the implied antitrust immunity has not changed much since its early days: the doctrine’s primary rationale is the elimination of conflicts between administrative agencies and federal courts. Over time, however, the immunity’s narrative and nature have considerably transformed. Born in the late nineteenth century as an application of the presumption against implied repeals, in PNB, the doctrine turned into an independent antitrust presumption. During the past five decades, the doctrine has transformed into an evaluative framework whose underlying premises tilt its outcomes toward preclusion of antitrust law.

The implied immunity doctrine is exceptionally important because it gives antitrust courts the power to preclude the application of antitrust law and influence national competition policy without meaningful a consideration of tradeoffs. Indeed, the doctrine is frequently invoked in courts. Yet, the doctrine has always been murky and confusing. This Article studies and clarifies the operation and applications of the implied immunity, as well as its structure, premises, and flaws.

Number of Pages in PDF File: 30

Keywords: Antitrust, Implied Antitrust Immunity

Open PDF in Browser Download This Paper

Date posted: June 10, 2014 ; Last revised: July 31, 2014

Suggested Citation

Orbach, Barak, The Implied Antitrust Immunity (June 8, 2014). Arizona Legal Studies Discussion Paper No. 14-16. Available at SSRN: https://ssrn.com/abstract=2447718 or http://dx.doi.org/10.2139/ssrn.2447718

Contact Information

Barak Orbach (Contact Author)
University of Arizona ( email )
1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)
520.858.0025 (Fax)
HOME PAGE: http://www.orbach.org

Feedback to SSRN

Paper statistics
Abstract Views: 596
Downloads: 166
Download Rank: 142,347